Delhi High Court
Mahanagar Telephone Nigam Ltd. vs Bharat Bhushan Sharma on 6 December, 2010
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 343/2001
% 6th December, 2010
MAHANAGAR TELEPHONE NIGAM LTD. ...... Appellant
Through: Mr. Dinesh Agnani and
Ms. Leena Tuteja, Adv.
VERSUS
BHARAT BHUSHAN SHARMA .... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
VALMIKI J. MEHTA, J (ORAL)
1. By the present appeal under Section 96 of the Code of Civil
Procedure, 1908 (CPC), the appellant, Mahanagar Telephone Nigam
Ltd. impugns the judgment and decree dated 14.3.2001 passed by Shri
Prithvi Raj, Additional District Judge Delhi, and by which judgment and
decree, the suit of the appellant/plaintiff has been dismissed on the
ground that the appellant has failed to prove the authority of the
officer for signing and verifying the plaint.
2. The facts of the case are that the appellant sanctioned a
telephone connection to the respondent bearing no. 7180761 on
7.9.1993 at the premises of the respondent at 9, Community Centre,
RFA 343/2001 Page 1 of 5
2nd Floor, Lawrence Road, Delhi. The telephone connection was
installed on 18.9.1993. On account of failure of the respondent to pay
the bills for the relevant periods, the appellant filed a suit for recovery
of Rs.1,45,493/-. The respondent in the suit was served by publication
and as he did not appear, he was proceeded ex parte. The plaintiff led
ex parte evidence, but the suit was dismissed on the ground that Sh.
R.C.Sharma, who was an Accounts Officer(legal) had no authority to
sign and verify the pleadings. The fact of the matter however was that
PW-2 Sh. Shyam Sunder in fact identified the signatures of Sh.
R.C.Sharma who was stated to be the Accounts Officer (Legal).
3. In my opinion the court below has clearly fallen into an error in
dismissing the suit on the ground that the plaint was not duly signed
and verified. In terms of Order 29 Rule 1 of the CPC, any principal
officer of a corporation, such as the appellant, can sign and verify the
pleadings. It need not be gainsaid and that an Accounts Officer (Legal)
is definitely a principal officer of the appellant corporation. In this
regard reference may be made to Section 2(30) of the Companies Act,
1956 which defines an „officer‟ and which provision reads:-
""officer" includes any director, manager or
secretary, or any person in accordance with whose
directions or instructions the Board of directors or any
one or more of the directors is or are accustomed to
act;"
The aforesaid is an inclusive definition. Though there appears to
be possibly a mistake in the language of the said sub-section because
it is an officer who acts on the instructions of the board and not vice
RFA 343/2001 Page 2 of 5
versa which appears to be wrongly stated in this section, however it is
quite clear that an officer of a corporation includes besides a Director
or Manager or Secretary, a person who is having duties as cast upon
him by the Board of Directors and an Accounts Officer thus would also
be a principal officer within the meaning of Order 29 Rule 1 CPC.
4. This aspect, with respect to the authority to sign and verify the
suit by a principal officer has been dealt with by a Division Bench of
this Court in the case of Kingston Computers (I) P. Ltd. Vs. State
Bank of Travancore 153 (2008) DLT 239 (DB) and in which, it has
been held that a principal officer is authorized by virtue of Order 29
Rule 1 CPC not only to sign and verify the pleadings, but also therefore
to institute the suit. Paras 23 to 26 of this judgment are relevant and
the same read as under:-
23. This then is the short issue which needs to
beconsidered by us exercising appellate
jurisdiction.
24. Order 29 Rule 1 of the Code of Civil
Procedure reads as under:-
" 1 . Subscription and verification
of pleading.-
In suits by or against a corporation, any
pleading maybe signed and verified on
behalf of the corporation by the
secretary or by any director or other
principal officer of the corporation who
is able to depose to the
facts of the case."
25. Discussing Order 29 Rule 1 of the Code of
Civil Procedure, in the decision in United Bank
of India's case (supra),in para 10, Hon'ble
Supreme Court held as under:-
RFA 343/2001 Page 3 of 5
"Reading Order 6 Rule 14 together with
Order 29 Rule1 of the Code of Civil
Procedure it would appear that even in
the absence of any formal letter of
authority or power of attorney having
been executed a person referred to in
Rule 1 of Order 29 can, by virtue of the
office which he holds, sign and verify
the pleadings on behalf of the
corporation. In addition thereto and
dehors Order 29 Rule 1 of the Code of
Civil Procedure, as a company is a
juristic entity, it can duly authorize any
person to sign the plaint or the written
statement on its behalf and this would
be regarded as sufficient compliance
with the provisions of Order 6 Rule 14
of the Code of Civil Procedure."
26. Suffice would it be to state that in law, the
Secretary, Director or a Principal Officer of a
company would be treated as duly authorized
to institute suit on behalf of a company. This
flows out from a bare reading of Order 29 Rule
1 of the Code of Civil Procedure and as further
explained in the decision in UnitedBank of
India's case."
5. Reference may also be made usefully to the judgment of the
Supreme Court in the United Bank of India Vs. Naresh Kumar &
others (1996) 6 SCC 660, in which, in para 13, it is said that there is
a presumption of valid institution of a suit once the same is prosecuted
for a number of years. This test as laid down by the Supreme Court is
also satisfied in the present case inasmuch as the suit in fact has been
prosecuted for four years by the appellant corporation for seeking an
appropriate decree against the respondent by adducing evidence.
I may note that the appellant is a public sector undertaking
and not a private company where there would be disputes between
two sets of shareholders claiming right to management and one set of
RFA 343/2001 Page 4 of 5
shareholders are opposing another set of shareholders with respect to
control and management of the company. This thus is an additional
fact that there can be no dispute as to the authority of the person
signing /verifying the pleadings and instituting the suit.
6. I may note that in the present appeal also respondent was served
by publication but he failed to appear.
7. Accordingly, in view of the ex parte evidence, as led of two
witnesses of the plaintiff PW-1 and PW-2 who have proved the factum
of sanction of the telephone connection, its installation, the bills as Ex.
PW1/2 to Ex.PW1/9, the notices which are Ex. PW 1/10 to Ex.PW1/12,
and the statement of account Ex. PW1/13, it is clear that the plaintiff
has proved its case for recovery against the respondent.
8. Accordingly, the impugned judgment and decree are set aside
and the suit is decreed for the recovery of Rs.1,45,493/- in favour of
the appellant and against the respondent with pendent lite and future
interest at the rate of 14% per annum simple from the date of
institution of the suit till realization. Costs of the suit and the present
appeal are also awarded in favour of the appellant and against the
respondent. Decree sheet be drawn accordingly.
The appeal is accordingly disposed of as allowed.
DECEMBER 06, 2010 VALMIKI J. MEHTA, J.
ib
